The radio show has been generating some interesting discussion, so make sure you check that out, either by visiting the show archives page and clicking on the discussion links, or by scrolling down this page to the post that describes each week’s show topics.
I also received this interesting email regarding FREEDOM OF SPEECH; $500,00 and thought it worthy of its own post:
Don: I read your recent posting regarding freedom of speech and I have the following thoughts. These thoughts are divided into two basic categories, legal issues and value considerations.
(UPDATE: Dan and I aren’t the only ones debating the role of government in legislating indecency. Here are two articles making similar cases: Regulation not the Answer vs. More Regulation Part of the Solution)
Legal Issues
The law surrounding freedom of speech is more disputable than people
may realize. Literally read, the First Amendment only prohibits the
United States Congress from "abridging the freedom of speech." The
manner in which the Supreme Court has extended the First Amendment to
the States is through the use of two doctrines, one referred to as
"incorporation" and the other referred to as "substantive due process."
The Fourteenth Amendment generally prohibits States from depriving
any person of life, liberty or property without the due process of law.
The "due process" clause (as this is colloquially referred to) of the
Fourteenth Amendment has served as the basis (largely quite legitimate)
of the incorporation (the first doctrine) of many of the prohibitions
against Congress contained in the Bill of Rights. But the
incorporation of the First Amendment requires legal fiction to get the
job done. Anglo-American jurisprudence is largely divided into two
categories of law: procedural law (which governs how trials and
adjudications are to be conducted) and substantive law (which governs
what legal rights the parties respectively have in any such trial or
adjudication). To get the substantive prohibitions contained in the
First Amendment into the "due process" clause, the Supreme Court
created the doctrine of "substantive due process." This, as a leading
Constitutional scholar once remarked, is a contradiction in terms. As
a side note, this unsubstantiated doctrine is the same one the Supreme
Court used in deciding Roe v. Wade.
I do not know exactly when the Supreme Court first incorporated the
First Amendment into the Fourteenth Amendment, but I would be pretty
surprised if it happened much earlier than 1945. The effect of this is
that the substantive regulation of States’ censorship is a very recent
development in Supreme Court jurisprudence. Thus, as a legal matter,
the absolute right to speak freely is very new and, contrary to popular
sentiment, is not a right founded in American history, at least not
absolutely. Censorship was the norm, and society seemed to function
just fine. As a slight digression, there are problems one encounters
by incorporating the First Amendment into the due process clause.
Congress has only those powers enumerated in the Constitution; States,
though, have general police powers. The breadth of the First Amendment
strongly implies that is was never intended to address the inherent
problems created when its substantive limitations are applied to
general police powers.
Value Considerations
My long explanation of the legal background of First Amendment
jurisprudence is necessary in understanding how I view the current
maniacal dedication people hold to freedom of speech. The common
belief is that society is always more healthy the more that people are
capable of expressing themselves. This has become the cornerstone of
the post-modernist belief system. But, for many reasons, I believe
that it is just simply wrong. There are many forms of expression that
are harmful to society. You and I would agree that much of the
sexually oriented expression has severely harmed our society. In
addition, much of the Internet and radio contains numerous other dark
forms of expression, with motifs of death and destruction. It is only
in this single-minded, post-modernist dedication to the right to
express oneself that these forms of expression can be seen as important
to building a solid society. I suggest that they lack any
philosophical basis and any empirical evidence to support their view.
What the founders of our country intended to do, broadly put, was to
prevent Congress from being able to muzzle political opponents. Their
concern was that a healthy political government cannot exist if the
sovereign is capable of silencing any opposition. This is a view that
finds great support in history and in empirical evidence. It is
immensely sensible. But they never focused on expression at all.
Indeed, the word "expression" never appears in the First Amendment, but
it rather prohibits Congress from "abridging the freedom of speech."
I have no problem with a Constitutional amendment that would prohibit
States from regulating political speech. I think it would be good
public policy, but it would have to be developed in light of and in
conjunction with the general police powers of the States.
Conclusion
This all brings me to the two subjects of the articles you referred to
in your posting. The first subject related to the increase in fines
for indecency over television and radio and the second subject related
to a university who refused to let a polemic professor from speaking.
Both of these, in my mind, represent the far reaches of this
post-modern view of expression. In increasing fines for indecency over
television and radio, there is no accusation that there is any effort
of shutting down political speech. Rather, the sole concern is that
there is virtually no television or radio that we can listen to any
more that is not filled with indecency. Regulating that indecency does
not present any threat to our public or political order; rather, it is
necessary to sustain that order. With respect to the second subject,
that baffles me more than any other. When did private organizations
have any obligation whatsoever to allow anyone to speak about anything?
The facts involved in Professor Churchill’s situation are far removed
from the concerns of the drafters of the First Amendment.
Let me know what you think.
Dan
Great insight, Dan. Let me comment on a couple of points you made.
I do have a maniacal devotion to free speech (although you may not have been attributing that sentiment to me) but it is not because I think "that society is always more healthy the more that people are capable of expressing themselves." Nor do I think that "the right to express oneself [is very] important to building a solid society." I am simply scared to death of the alternative.
My concern with free speech is basically this: I don’t trust government to share my worldview or my values and therefore I don’t want the government to be in charge of regulating what I can say in public. After all, it’s one thing to have a government enforcing "indecency" laws when you agree with their view of "indecency" but what happens when their standard changes? In Canada and Sweden, for instance, speaking against homosexuality is considered hate speech, punishable
under the law. It takes no stretch of the imagination to see how a radio show like mine could be considered indecent by being inflammatory against people of other religions and shut down under a different government.
Beneath this practical concern though, I have a view of freedom and government which I think the founders shared, at least to some extent and which relates to your statement, "Rather, the sole concern is that there is virtually no television or radio that we can listen to any more that is not filled with indecency. Regulating that indecency does not present any threat to our public or political order; rather, it is necessary to sustain that order." This view can be summed up in a
couple of quotes. The first is from Edmund Burke:
"Society cannot exist unless a controlling power upon will and appetite be placed somewhere, and the less of it there is within, the more there must be without. It is ordained, in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters."
The fact that there is no TV or radio we can watch is not the fault, nor the concern, of the government. We have terrible media because people have no moral self control (I include both those who produce media and those who consume it). As such, I understand why everyone is fighting for morality laws these days (no self control) and I agree that it is an attempt to preserve order, but I still don’t think it is a good development. If you are to the point in a culture where the government has to enforce a lot of discipline on the people to keep order, the society is on its last legs. More government control will only mean bad government control, no matter what party is in power.
My personal goal is to stem the tide of immorality not by getting more laws passed, but by creating more people (through conversion to authentic Christianity) who have self control. I realize the many detractors to this theory (I have had this conversation in many a class), but I think one still has to try. Besides, social transformation is not my primary concern – it is the advancement of the kingdom of God. The two happen to go hand in hand, but that doesn’t mean you can seek the former ahead of the latter. It is the other way around – social transformation from the government down would not make more Christians. Rather, grass roots revival would bring social transformation.
The second quote is from James Madison:
"We have staked the future … upon the capacity of each and all of us to govern ourselves, to control ourselves, to sustain ourselves according to the Ten Commandments of God."
I don’t think Madison liked the view of a future in which people couldn’t control themselves and I don’t think he would be happy with having to pass a lot of anti-indecency legislation.
Thanks Dan,
Don